Founders, Keepers

Imagine that a decade from now, an extraordinary new constitution emerges to govern the democratic state of Russia. Imagine that this constitution is adopted after a long period of discussion and debate among the Russian people, that it combats internal conflicts and external threats, and that it seems to ensure against the problems of both Communist and post-Communist Russia. Such a document would not have the sanctity attached to older documents; but precisely because people would know exactly what its provisions were for, it would have major compensating virtues. The Russians might not revere their constitution, but it would speak directly to them.

Americans revere their Constitution, but it is not clear that it speaks directly to us. To be sure, we are aware of the basic structures of federalism, of checks and balances, of the Bill of Rights, of the power of the Supreme Court. But we no longer have much of a sense of the concrete struggles and dilemmas that gave the Constitution its dimensions and its shape. We are entirely unlike the citizens described by Thomas Paine, who carried the Constitution in their pockets and frequently consulted it for guidance on the issues of the day. Sometimes the Constitution seems too abstract, too old, too distant, even a bit too sterile. Its authors do not seem like real people addressing concrete problems.

Samuel H. Beer's new book is a self-conscious effort to produce a "usable past" -- an understanding of the Constitution, and of its original context, that can speak vividly and with some specificity to current readers. Beer -- an expert in British politics -- describes the American Constitution-makers as great nationalizers and democrats, committed to strong government operating securely under popular control. Beer thinks that we can draw something of a straight line connecting Madison and Hamilton to Abraham Lincoln to Franklin Delano Roosevelt to Lyndon Johnson -- and that there is a similar line to be drawn from the anti-federalist opponents of the Constitution to John C. Calhoun to Ronald Reagan.

For Beer, the great drama of American constitutional thought, still very much with us today, involves a concrete struggle between two sets of ideas. On the one side are the heirs of Montesquieu, believing that a republic can flourish only if it is small and homogenous. On this view, heterogeneity and difference pose great risks to stability and social peace. A large nation must be a kind of confederacy, allowing a large degree of autonomy for self-governing subunits. On the other side are the heirs of James Madison, Montesquieu's great critic, arguing that heterogeneity is an affirmative good, that it promotes social deliberation, and that a large unified republic, not a confederacy, is best able to combat the risks of factionalism, or what we would now call interest-group pressures.

Though Beer discusses a number of antecedents (including Milton and James Harrington), the heart of the book is his vigorous account of the American founders. The account is organized around four closely related ideas: sovereignty, government by discussion, positive constitutionalism and the compound republic. Beer suggests that the American understanding of sovereignty was the building block for all that followed. In England, sovereignty lay with the Parliament, which therefore had (in Blackstone's words) "absolute despotic power." In America, as Madison wrote, "the case was altogether different." Sovereignty was always understood to lie with the people, who constituted and authorized their government, that of nation and states alike.

This shift in the conception of sovereignty had dramatic consequences. It would ultimately entail a vigorous free speech principle, forbidding government from making "seditious libel" a crime. If sovereignty resided with the people, no such crime could exist: the people could not libel themselves. The shift in the conception of sovereignty would also suggest that the old English notion of "mixed government" -- allowing representation for various social classes -- must be replaced by a system of checks and balances. In this system, the sovereign people, not embodying different social classes, could pursue a strategy of divide and rule by splitting government power among diverse institutions all subject to the people's control.

"Government by discussion" is Beer's term for a system in which deliberation among the diverse and the heterogeneous would encourage the emergence of general truths. The Thomistic commitment to "rule by the wise and the holy," emphasizing authority and deference, left little room for public discussion. For his part, Montesquieu had stressed the need for homogeneity and agreement as a check on social tumult. For Montesquieu and his followers (many of them with us today), a diverse and large society could not be a successful republic. The American founders rejected these views. They sought a system in which the widening of the sphere of interests would actually improve rational deliberation and better protect justice, rights and the common good. Since so many interests must be included and consulted, there would be a natural broadening of outlook. Private preferences would be transformed and expanded in the process of deliberation and debate, as more and more concerns and interests were heard and understood.

Beer persuasively shows that Madison and Hamilton did not see the political process as an effort to aggregate and to trade off private interests. They did not model politics on economics or bargaining theory. Their belief in public discussion, understood as a means of changing preferences through broadening perspectives, was the key to their aspirations for government. Beer understands much of American government -- including separation of powers, bicameralism and federalism -- in this light. All of these institutions were efforts to improve the process of government by discussion.

Equipped with this notion, Beer vigorously rejects the idea that the American constitutional project was to disable government. On the contrary, he sees the Framers' project as expansive, enabling and facilitative -- as an effort to establish positive constitutionalism suitable for a "strong democracy" with the broad powers sufficient to meet both domestic and foreign challenges. Beer reminds us that a serious problem with the Articles of Confederation was a weak state, unable to engage in the tasks that were necessary for a commercial republic. The Framers wanted to strengthen government, not to paralyze it.

Finally, Beer shows that Americans rejected Montesquieu's recommendation of a confederate republic in favor of a new entity altogether: the "compound republic." Montesquieu thought that a large republic would be subject to self-destructive tumult. The only possible remedy was a kind of confederacy in which each local unit would have significant autonomy. In such a system, differences would be diminished and self-government would be more likely. The appropriate institution was therefore a kind of convention or agreement among separate states, in which secession was an acknowledged right. We might think of the European Community as a modern example.

As Beer shows, Madison turned Montesquieu's teaching on its head. Madison argued that a large republic would be freer from tumult, and that heterogeneity could be turned to a large nation's advantage. In a compound republic, the source of authority was the people, not the states, and the national government would be supreme over the states. And in a large republic, the various factions would counteract each other, and national representatives, operating above the fray, would be more likely to consult the public good. Rights would be more rather than less secure. Moreover, the parochial interests of the states could be overcome to everyone's benefit. This was a great advantage over Montesquieu's confederacy, in which each state, following its own self-interest, would contribute to the collective disadvantage and eventually its own.

The American systems of national representation, separation of powers and federalism would furnish "auxiliary precautions." National representation would enable better deliberation; the system of separation of powers would be an efficient division of labor and also improve general discussion. Madison made two arguments for maintaining a significant role for the states. The first was efficiency. Because people had different desires and tastes, it was important to allow the states basic governing authority, for they could best respond to local interests. But Madison also urged that states exert a check on the federal government, allowing a vertical as well as horizontal system of checks and balances. In this way, the existence of states could help counteract the spirit of faction. But under the founders' system, there was no question that in the end the national government, backed by the sovereignty of the people, would be supreme. Federalism was hardly a means of limiting the system of self-rule. It was part and parcel of the democratic faith of the early Americans.

This, then, is Beer's picture of the founders -- as surprisingly coherent theorists, nationalists, centralizers and democrats, supporters of strong government, committed to broad public deliberation. This is a distinctive and important account. For one thing, it helps show the sterility of the debate, now popular in both history and law, about whether the founders were "republicans" or "liberals." In this debate, republicans are said to be concerned with the common good and with encouraging broad public deliberation among virtuous people; liberals are said to emphasize the protection of private rights and the role of self-interest in politics. Beer shows that this division is far too crude to capture the founding vision. To be sure, the founders were republicans. They prized public deliberation and operated with a belief in the need for and the possibility of a virtuous citizenry. But they were liberals too. They recognized that people are entitled to disagree, and they favored a set of rights to be protected. Of course they believed in limited government. On Beer's account, the question whether the Framers were "liberals" or "republicans" never emerges.

Equally important is Beer's emphasis throughout on the aspiration to "government by discussion," and on the connection between that aspiration and the American rejection of natural hierarchies. Here Beer counters the persistent but ahistorical tendency to see the founders as anti-democratic aristocrats seeking to protect existing distributions of wealth from popular change. Some critics think that in their rejection of anti-federalist thought -- some of which did place a high premium on economic equality -- the founders were seeking to limit dangerous redistributive strategies. It is not as if there is no truth in this. The Framers were certainly interested in creating economic prosperity and in giving birth to a truly commercial republic, and they believed that certain redistributive legislation (prominently including debtor relief laws) could prove an obstacle to that goal.

But Beer shows that the Framers cannot fairly be characterized as aristocratic enemies of popular rule. They insisted that sovereignty lay with the people, not with their representatives, and much of their thought was associated with this rejection of their monarchical heritage. Where they distrusted pure democracy, it was not because they sought to entrench class privilege or existing distributions of wealth, but because they wanted to ensure institutions that would benefit from the best kind of public deliberation, and to offer constraints against its absence. They wanted to make popular rule possible and enduring, and following Harrington, they knew that complex rather than simple institutions were necessary for that task.

Beer also offers an important corrective to the view that the American founders were hostile to government. On the contrary, their Constitution was designed to enable public action. Thus the great sources of national power -- commerce, taxation, spending for the general welfare -- were intended to confer the kind of government authority necessary for a commercial republic. This was hardly the project of people who sought to stifle the activities of the new government.

As I have noted, Beer is interested in providing a vivid and usable past, and in many ways he has succeeded. In some ways, however, that overriding goal seems to me to get in the way of a full picture of what the founders were about. Take, for example, Beer's claims about the continuity from Madison and Hamilton through Lincoln to Roosevelt and Johnson. Undoubtedly the great American nationalists had this much in common: they opposed people who sought to diminish national power. But we could also tell a convincing story of discontinuity. Lincoln and Roosevelt were hardly Madison. The Civil War and its aftermath are often said, and plausibly, to have created a second constitutional regime, with a new system of rights, a new system of federalism and a new relationship among the three branches of the national government. It is at least reasonable to think that through its vigorous expansion of national and especially presidential power, the New Deal changed the post-Civil War Constitution as much as the Civil War changed the founders' own document. Ronald Reagan's project was not the anti-federalists' own. His efforts to diminish national authority were quite modest, and in their way not discontinuous with the founding vision.

Now Beer's principal project is to describe the founding itself, not to tell a tale about all of American history; but I think that the problems with his claim of continuity do bear on his main goal. Part of the trouble is that the description of the founding seems in places coarse-grained, with vague abstractions (strong democracy, justice, the common good, rights) doing more work than they should. The Framers believed, for example, in justice and the common good, but Beer never makes it entirely clear how they understood these ideas. We know of course that the founders sought to protect rights; but which rights? Did they mean by rights what we mean by rights? Surely not; the category of protected rights has shifted dramatically in the last two hundred years. Of considerable importance to the Framers' project was the contracts clause, requiring states to respect the sanctity of contracts. As noted, debtor relief legislation was perceived as a major problem under the Articles of Confederation, and it marked some of what the Framers saw as an invasion of rights in that period. But Beer gives no attention to this important issue. Beer emphasizes political rights, and rightly so. But the Constitution did not protect the right to vote, and the original understanding of freedom of speech was exceedingly narrow. Individual rights as we now understand them were really inaugurated by the Civil War Amendments.

Slavery itself was a serious question, of course, in the founding period, and the Constitution's near silence on this issue was a product of some disputed mixture of considerations of principle and prudence. Many people thought that rights were involved on both sides. Here too Beer is silent, and the absence of discussion of this important issue -- a key to all stages of American constitutionalism -- impairs his account. In short, Beer's effort to celebrate the founders' achievement sometimes seems to prevent him from offering a sufficiently finely detailed picture of what they were about.

More generally, I think that Beer makes the Madison/Hamilton position seem both more coherent and more Rooseveltian than in fact it was. In many ways this is New Dealers' history, with a large emphasis on what Bruce Ackerman calls "the myth of rediscovery" -- the insistence that the twentieth-century American state is merely recalling the work of Madison and Hamilton. It is true that the Constitution provided for more centralization than the Articles of Confederation. Beer's basic claim -- that the Framers were strong democratic nationalists, committed to enabling government and to popular sovereignty -- is powerfully sustained.

But it is also true that for many in the framing period, the systems of federalism, judicial review and checks and balances were designed to constrain government action in the interest of a certain understanding of liberty. For the Framers, democracy was a bad word; they sought to create a republic, one of whose goals was to constrain popular impulses, partly in the interest of protecting property rights. The Constitution was designed to be not just enabling, but disabling as well. Sharp constraints on government power were part of its point. If Hamilton and Madison were centralizers committed to positive government, it was in a pretty modest sense, certainly by modern standards. Beer's portrait produces, I think, more simplicity and coherence than we actually find.

And what of the relationship between the national government and the states? It is true that the authority of the national government grew dramatically with the founding, but of course the founders did not envisage a nation with the extraordinary powers of the late twentieth-century federal government. Instead they thought that constitutionally enumerated sources of national power allowed for the creation of specific authorities suited to specific tasks. If we are to have a full picture of the founding vision, we need to know what these sources of authority entailed. Here Beer's treatment seems to me too general and abstract.

I have noted that Beer believes the great struggle in American history is between the nationalists and the believers in state autonomy; he shows this struggle in the earliest debates over the Constitution. But in these debates, a good deal has always turned on the question of what centralization is for. Madison and Hamilton thought that a prosperous economy required a nation with (among other things) a strong executive branch, taxing power and authority over interstate commerce. Lincoln's legacy is not only the preservation of the union but also and simultaneously the attack on the system of racial caste. Roosevelt sought to experiment with methods for counteracting some of the hardships in a system of economic laissez-faire.

For a fuller picture of the great issues of American constitutionalism, we need to understand how the institutional debates were intertwined with a set of concrete substantive controversies. Whatever else Hamilton and Madison were, they were great experimenters and improvisers, seeing institutional arrangements as important not in themselves, but as means for accomplishing a variety of particular ends. In this they were joined by Lincoln, and above all by Franklin Delano Roosevelt, with his willingness to stretch the constitutional framework with new institutional arrangements.

There is also a degree of vagueness in Beer's interesting description of the system of government by discussion. The subject is especially important, since it bears on such modern problems as campaign finance regulation, federalism, access to the media, the nature of the commitment to free expression, even (as Beer emphasizes) multiculturalism. One basic question is this: When and by what mechanisms does free discussion encourage the emergence of more general truths? When people disagree on first principles -- when there is real heterogeneity -- government by discussion seems most difficult. If people have nothing in common, they may have trouble even understanding each other. Here the heirs of Montesquieu are on their strongest ground. There clearly is a large task for liberal institutions, which attempt to ensure a common life for people who disagree sharply with one another. It seems especially healthy to create institutional arrangements that allow for high degrees of both representation and decentralization. On these issues, the Framers have hardly had the last word.

As Beer is aware, current dilemmas cannot be solved by any description of the making of an old document, even the Constitution. But certainly this much can be said: through his emphasis on the democratic and nationalizing tendencies of the framing period, Beer has offered an admirable discussion of America's founding aspirations, and he succeeds in revealing the close relationship between those aspirations and some complex, seemingly erratic constitutional structures. More than two hundred years ago, reasonable people could think that the goal of government by discussion, and the preservation of liberty, would be promoted rather than undermined by an unruly system containing checks and balances, federalism, judicial review and a specified set of individual rights. Among other things, Beer's book is a reminder of the need to connect lofty substantive goals with shrewd institutional arrangements. As we think about our own aspirations, this is a singularly important lesson to keep in mind.

Cass R. Sunstein is the author most recently of The Partial Constitution (Harvard University Press).